A Bench of the Supreme Court consisting of Justice MR Shah and Justice Aniruddha Bose has ruled that it can't exercise its power under Article 142 of the Constitution to condone delay beyond the period of 15 days, over the period of 30 days provided to file an appeal before the National Company Law Appellate Tribunal (NCLAT).
Sub-section (2) of Section 61 of the IBC provides for powers to the NCLAT to condone the delay of up to 15 days over the period of 30 days, if there is a sufficient cause. The NCLAT had dismissed the appeal of the appellant by refusing to condone a delay of 44 days beyond 30 days. The appellant prayed before the Supreme Court to exercise its power under Article 142 to condone the delay.
While refusing to accept the prayer, the Bench observed that the Parliament has not carved out any exception in the statute, "It is true that in a given case there may arise a situation where the applicant/appellant may not be in a position to file the appeal even within a statutory period of limitation prescribed under the Act and even within the extended maximum period of appeal which could be condoned owing to genuineness, viz., illness, accident etc. However, under the statute, the Parliament has not carved out any exception to such a situation. Therefore, in a given case, it may cause hardship, however, unless the Parliament has carved out any exception by a provision of law, the period of limitation has to be given effect to. Such powers are only with the Parliament and the legislature. The courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, it would amount to legislate which would in turn might be inserting the provision to the statute, which is not permissible."
The appellant contended that is a public body and that it has a claim of Rs. 673.85 crores against the corporate debtor. The appellant's case was that its claim against the corporate debtor was supported by a Decree it obtained against a sister concern of the corporate debtor from the High Court of Bombay and an investigation report of the ED which found that Rs. 744 crores had been siphoned off from the sister concern to the corporate debtor. However, the appellant's claim was rejected by the IRP as well as the NCLT.
The Bench also noted that, "It is also required to be noted that even Shri Maninder Singh, learned senior counsel appearing on behalf of the appellant has, as such, fairly conceded that considering Section 61(2) of the IB Code, the Appellate Tribunal has jurisdiction or power to condone the delay not 18 exceeding 15 days from the completion of 30 days, the statutory period of limitation. However, has requested and prayed to condone the delay in exercise of powers under Article 142 of the Constitution of India, in the facts and circumstances of the case and submitted that the amount involved is a very huge amount and that the appellant is a public body. We are afraid what cannot be done directly considering the statutory provisions cannot be permitted to be done indirectly, while exercising the powers under Article 142 of the Constitution of India."
Parties : National Spot Exchange Limited Versus Mr. Anil Kohli, Resolution Professional for Dunar Foods Limited